DeBose v. USF Board of Trustees et al

MOTION to stay Pending An Evidentiary Hearing and/or Limited Deposition Discovery

M.D. Fla.August 24, 2018

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION ANGELA DEBOSE, Plaintiff, v. CASE NO. 8:15-cv-02787-EAK-AEP UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, and ELLUCIAN COMPANY, L.P., Defendants. ______________________________ PLAINTIFF’S MOTION FOR AN IMMEDIATE STAY PENDING AN EXPEDITED EVIDENTIARY HEARING AND LIMITED DEPOSITION DISCOVERY Pursuant to Federal Rule of Civil Procedure 62(b), Plaintiff Angela DeBose files this expedited motion, moving the Court for an Immediate Stay during the pendency of an expedited evidentiary hearing on the Pretrial Order [313]; Plaintiff also respectfully asks the Court to include the matter of Plaintiff’s Motion to Strike Defendant’s Affidavit as a Sham, for Sanctions, and for Default Judgment [295] at the evidentiary hearing or alternatively allow limited deposition discovery. In support thereof, Plaintiff states as follows: INTRODUCTION Federal Rule of Procedure 62(b) provides for issuance of a stay pending the disposition of a motion, and states that “the court may stay the execution of a judgment-- or any proceedings to enforce it--pending disposition of any of the following motions: . . . (4) under Rule 60, for relief from a judgment or order.” Fed. R. Civ. P. 62(b)(4). Federal Rule of Civil Procedure 60(b) provides that courts may provide relief from an order for reasons of “mistake, inadvertence, surprise, or excusable neglect.” This Circuit and others have recognized that the rule’s reference to a “mistake” encompasses not only mistakes Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 1 of 8 PageID 4978 made by litigants, but also mistakes made by the Court. See, e.g., D.C. Fed’n of Civic Ass’ns v. Volpe, 520 F.2d 451, 453 (D.C. Cir. 1975) (per curiam) (holding that district court abused its discretion by failing to correct a legal error pursuant to Rule 60(b)(1)); 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2858.1 (4th ed. 2012) (discussing relief under Rule 60(b)(1) for “Court Errors and Mistakes”). The Court also has discretion to provide relief from an order for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). “New evidence,” Fed. R. Civ. P. 60(b)(2), and “fraud,” Fed. R. Civ. P. 60(b)(3), also provide a basis for relief. The Rules further provide that “[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time . . . with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires.” Fed. R. Civ. P. 6(b)(1)(A). The Court “has discretion to grant timely requests for extensions [under Rule 6(b)(1)].” Woodruff v. McPhie, 593 F.Supp.2d 272, 276 (D.D.C. 2009) aff’d, 383 Fed. App’x 5 (D.C. Cir. 2010). Immediate Stay In Plaintiff’s Motion to Strike the Defendant’s Affidavits as a Sham [295], DeBose presented new evidence as well as other evidence of the Defendant’s fraud upon the Court and upon Plaintiff. These matters therefore qualify as Rule 60 relief from judgment and thus for a Rule 62(b)(4) Stay. Also, the Court committed a legal error in failing to give so much as an adverse inference for the Defendant’s denial and nondisclosure that it used a third-party to carry- out a nonroutine destruction of Plaintiff’s evidence while on notice of its duty to preserve. The record will reflect that the Court never reconciled why USFBOT’s conduct would not be considered as willful, when this Defendant changed its story from non-disclosure and denial to its latent admission after discovery, of duplication as the reason for their destruction of Plaintiff’s personnel files. The record will also reflect that the Court has never reconciled how it is possible Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 2 of 8 PageID 4979 to believe both Plaintiff’s witnesses, Delonjie Tyson and Vanessa Centelles who contradict Defendant’s Ms. Palmer and other witnesses. Perhaps the trial judge can help explain how it would be impossible to maintain Lois Palmer as credible, if the Court believes Ms. Tyson and Ms. Centelles testimony. It’s utterly impossible, and therefore the Plaintiff rightfully seeks an evidentiary hearing with testimony from Defendant’s witnesses or alternatively limited deposition discovery from the same witnesses. Importantly in this context, the Court’s mistake (arguendo by Defendant) entitles Plaintiff to Rule 60 relief from judgment and thus for a Rule 62(b)(4) Stay. ARGUMENT I. A Stay is Warranted A stay is necessary and fully warranted in this case. In considering a request for a stay pending appeal, this Court considers four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (footnote omitted). Here, each factor weighs heavily in favor of staying the action immediately, pending resolution of the evidentiary or discovery matters before the Court. DeBose’s Motion Should Be Granted Because Deciding The Merits Will Require Only Limited Discovery. In considering the first factor, the Court has not clarified how it could believe both Delonjie Tyson’s and Lois Palmer’s account, when Ms. Tyson has testified that Lois Palmer could not possibly give an account of what happened in the destruction of Plaintiff’s files et al. because Ms. Palmer was not the Registrar at the time, was not then hired by USF, and therefore Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 3 of 8 PageID 4980 was not physically present at the campus when the department’s personnel files were put into shred bins. USFBOT did not defend and nor did the Court question the Defendant about whether Palmer was there, or ask the Defendant about Plaintiff’s allegation that USFBOT’s General Counsel Gerard Solis suborned perjury from Lois Palmer, Suzanne McCoskey Bishop, and Victoria Johnson and entered their twice “scripted” false affidavits into the Court record on January 23, 2017 and February 7, 2017. In its Opposition and at the August 14, 2018 hearing, Defendant did not defend against these allegations. A motion for expedited evidentiary hearing with direct testimony or an order allowing the depositions of Mr. Solis, Ms. Palmer, Ms. McCoskey Bishop, and Ms. Johnson to be taken was demanded in Plaintiff’s motion [295] and requested again at the August 14, 2018 hearing (pretrial conference). The testimony of these witnesses under oath at an evidentiary hearing or at deposition will clarify matters, resolve the important question of whether or not Ms. Palmer and USFBOT’s other witnesses lied in their affidavits, and thus prevent manifest injustice against Plaintiff. Plaintiff’s witnesses, Delonjie Tyson, Verna Glenn, and Barbara Lamphere were deposed. The Defendant’s counsel had a meaningful opportunity to cross-examine these witnesses.1 None of the Defendant’s witnesses have been deposed. Ms. DeBose made a request to depose them at hearing on August 14, 2018 concerning the limited issue of the destruction of the USF Registrar’s Office employment files and those of Ms. DeBose. The Plaintiff disclosed her efforts to depose them in a state court action, with USFBOT filing an (unheard) motion for a protective order. The Court was silent as to the request. This motion should be granted to avoid manifest injustice. 1 Kimberly Bushe-Whiteman was questioned by the Tampa Police Department; though she expressed fear about her job in her affidavit, Ms. Bushe-Whiteman nevertheless made out a sworn police statement, attesting to the truthfulness of her affidavit. Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 4 of 8 PageID 4981 II. Plaintiff Faces A Meaningful Threat Of Harm If Matters Are Not Expedited Ms. DeBose contends that she is suffering irreparable harm with the rush to trial and the Court short-shrifting her motion, without an evidentiary hearing or the deposition of Defendant’s witnesses. A meaningful opportunity to depose these witnesses is necessary in order to avoid further irreparable harm. Plaintiff’s evidence has been spoliated and her case undoubtedly prejudiced. USFBOT should not be allowed to continue-much less to proceed to trial without stipulating to or receiving an adverse inference for their destruction of the Plaintiff’s evidence. USFBOT should not be allowed to continue-much less to proceed to trial without the Court fully questioning Defendant’s witnesses about their bad faith and a corrupt intent to deceive and commit fraud upon the Court and the Plaintiff, for the purpose or sole intent of avoiding sanctions that were warranted in this instance. For purposes of the Stay and a showing of irreparable harm, the moving party must show that the injury is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989); Roland Mach Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984). The testimony of these witnesses under oath at an evidentiary hearing or at deposition will clarify matters and resolve important questions-e.g. Mr. Solis’s role in writing Suzanne McCoskey’s affidavit, whether Ms. Palmer was there when the destruction occurred, and whether Ms. Palmer and the other USFBOT witnesses lied in their affidavits. It harms the Plaintiff’s opportunity for a fair trial if evidence of the destruction is not known by a jury. Plaintiff was unfairly prejudiced by the Defendant’s destruction and her injury will continue and is not capable of being fully remedied by money damages. Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 5 of 8 PageID 4982 III. The Balance of the Harms and Balance of the Equities Warrant a Stay Plaintiff contends the balance of harms and the balance of equities warrant a Stay. DeBose has a strong likelihood of succeeding on appeal and addresses the factors that make a stay imperative. United Steelworkers of America v. Textron, Inc., 836 F.2d 6, 7 (1st Cir. 1987) (quoting Vargas-Figueroa v. Saldana, 826 F.2d 160, 162 (1st Cir. 1987)). Plaintiff argues that the balance weighs decidedly in her favor. Her threatened injury outweighs any harm or damage to the Defendant, should the serious issue of Defendant’s fraud against Plaintiff and the Court not be sufficiently addressed by this Court once and for all, head-on. The Defendant’s inconvenience and uneasiness in opposing an evidentiary hearing can in no way outweigh the potential harm to Plaintiff and the public’s interest - particularly when the Defendant USFBOT is a contributor to its own losses. When asked at the August 14, 2018 hearing if Ms. Palmer was there, Defendant skirted the issue. Ms. Palmer should be compelled to answer under oath and the full force of what that intends. IV. Plaintiff Is Likely to Prevail on the Merits The Plaintiff is highly likely to prevail on the merits. The relief request is appropriate here, and a Stay is not out of the bounds of possibilities or overbroad. Standing alone, the discovery violations of Defendant (e.g. willful destruction of DeBose’s files, the concealment or nondisclosure of Plaintiff’s 2015 employment contract, withholding the USF-Ellucian-Diamond agreement, and false defenses and answers) provide an adequate basis for a stay and reversal of the Court’s Order [311]. The combination or totality of such violations makes all the more clear DeBose’s likelihood of success on the merits and the need to enter a stay now. As an initial matter, the district court analyzed the legal issues posed by this case based on a profound misunderstanding that USFBOT is pristine and white within when its actions here have been altogether corrupt. The Court must decide whether the Stay will harm the public interest. Ty, Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 6 of 8 PageID 4983 Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). The Court must remember that the enforcement of antidiscrimination laws serves not only the interests of the private parties but also “vindicates[s] the public interest in preventing employment discrimination.” General Tel. Co. v. EEOC, 446 U.S. at 326, 100 S.Ct. at 1704; Astra 94 F.3d at 745. The Defendant’s tactics to destroy evidence and suborn perjury, also destroys the public’s strong interest and expectation for the fair adjudication of claims on the merits. Moreover, the public interest is served by the parties being able to rely on the fair administration of justice. Like the public policy and moral justice of the law discussed by Prosser and others, the public’s desire is to prevent manifest injustice. CONCLUSION For the foregoing reasons, the Court should immediately stay the case and proceed with the requested evidentiary hearing and deposition discovery. Submitted August 24th, 2018 /s/ Angela DeBose __________ Angela DeBose CERTIFICATE OF CONFERRAL The Plaintiff disclosed her plans to file this motion. Defendant opposes. Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 7 of 8 PageID 4984 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of August, 2018, the above and foregoing was filed with the Clerk of the Court, which will email the following: Richard C. McCrea, Jr., Greenberg Traurig, P.A., 101 East Kennedy Boulevard, Suite 1900, Tampa, Florida 33602-5148; email: (mccrear@gtlaw.com) and Kimberly Doud, Littler Mendelson, 111 North Magnolia Avenue, Suite 1250, Orlando, Florida 32801; email: (kdoud@littler.com). _/s/ Angela DeBose __________ Angela DeBose 1107 W. Kirby Street Tampa, Florida 33604 Telephone: (813) 932-6959 Email: awdebose@aol.com Case 8:15-cv-02787-EAK-AEP Document 340 Filed 08/24/18 Page 8 of 8 PageID 4985